93 Decision Citation: BVA 93-17330
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-45 325 ) DATE
)
)
)
THE ISSUES
1. Whether new and material evidence has been submitted to reopen
the veteran's claim for service connection for post-traumatic stress
disorder.
2. Whether new and material evidence has been submitted to reopen
the veteran's claim for service connection for "punji stick" wound
residuals.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United
States
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
John T. Hutcheson, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals (hereinafter
"the Board") on appeal from a November 1990 rating decision of the
Huntington, West Virginia Regional Office (hereinafter "the RO").
The veteran had active military service from June 1964 to June 1967.
A hearing before a hearing officer was conducted at the RO in
February 1991. The hearing officer construed the transcript of the
veteran's testimony so as to constitute a timely notice of
disagreement to the RO's November 1990 rating action. The statement
of the case was issued in July 1991. The substantive appeal was
received in September 1991. This case was received and docketed at
the Board in October 1991. A hearing before the Board was conducted
in Washington, D.C., in December 1991. A written opinion from the
Board's psychiatric advisor was requested and subsequently received
into the record in June 1992. In November 1992, the Board sought the
opinion of an independent medical expert. The requested opinion was
received in March 1993. The veteran has been represented throughout
this appeal by the Veterans of Foreign Wars of the United States.
That organization submitted a written presentation in April 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts on appeal that the RO erred in failing to reopen
and grant his claim for service connection for both post-traumatic
stress disorder and "punji stick" wound residuals as new and material
evidence has been incorporated into the record which establishes that
the claimed disabilities were incurred in or are the result of his
period of active military service. He contends that he has been
diagnosed as suffering from post-traumatic stress disorder by
Department of Veterans Affairs (hereinafter "VA") and private
psychiatric personnel and has been hospitalized for treatment of that
disorder. He advances further that he sustained a penetrating wound
to the right foot in April 1966 when he stepped on a "punji stick"
while in Vietnam.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following review and consideration of all of the evidence and material
of record in the veteran's claims file, it is the decision of the
Board that he has submitted new and material evidence sufficient to
reopen his claim for service connection and that the record supports
the allowance of service connection for both post-traumatic stress
disorder and "punji stick" wound scar residuals of the right foot
based upon benefit of the doubt being resolved in the veteran's
behalf.
FINDINGS OF FACT
1. In February 1987, the RO denied service connection for
post-traumatic stress disorder. The veteran was informed in writing
of both the denial and his appellate rights in February 1987. A
notice of disagreement as to that decision was received in October
1987. A statement of the case was issued in November 1987. A
substantive appeal was not perfected within the following year.
2. The Board denied service connection for an acquired psychiatric
disorder including post-traumatic stress disorder in October 1990.
The veteran and his accredited representative were provided with
copies of the Board's decision.
3. The additional documentation submitted since the Board's October
1990 decision is new and material as to the issue of service
connection for post-traumatic stress disorder.
4. Post-traumatic stress disorder was manifested as the result of
the veteran's active military service.
5. In February 1987, the RO denied service connection for residuals
of a "punji stick" wound. The veteran was informed in writing of
both the denial and his appellate rights in February 1987. A
substantive appeal was not perfected within one year of notification
of the adverse decision.
6. The Board denied service connection for residuals of a "punji
stick" wound in October 1990. The veteran and his accredited
representative were provided with copies of the Board's decision.
7. The additional documentation submitted since the Board's October
1990 decision is new and material as to the issue of service
connection for "punji stick" wound residuals.
8. A "punji stick" wound of the right foot was sustained during
active military service.
CONCLUSIONS OF LAW
1. The additional documentation submitted since the October 1990
Board decision constitutes new and material evidence sufficient to
reopen the veteran's claim for service connection for post-traumatic
stress disorder. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108, 7104(b)
(West 1991); 38 C.F.R. § 3.156(a) (1992).
2. Post-traumatic stress disorder was incurred during active
military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991).
3. The additional documentation submitted since the October 1990
Board decision constitutes new and material evidence sufficient to
reopen the veteran's claim for service connection for "punji stick"
wound residuals. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107, 5108,
7104(b) (West 1991); 38 C.F.R. § 3.156(a) (1992).
4. A "punji stick" wound of the right foot was incurred during
active military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, it is necessary to determine if the veteran has submitted
a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991), and if so, whether the VA has properly assisted him in
the development of his claim. A "well-grounded" claim is one which
is not implausible. Our review of the record indicates that the
veteran's claim is plausible and that all relevant facts have been
properly developed. Accordingly, a remand in order to allow for
further development of the record is not appropriate.
I. Post-Traumatic Stress Disorder
A. Prior Board Decision
In February 1987, the RO denied service connection for post-traumatic
stress disorder. The veteran was informed in writing of both the
denial and his appellate rights in February 1987. A notice of
disagreement as to that decision was received in October 1987. A
statement of the case was issued in November 1987. A substantive
appeal was not received within the following year. In June 1989, the
veteran sought to reopen his claim. In October 1990, the Board
determined that the evidence incorporated into the record since the
RO's February 1987 rating decision did not establish "a new factual
basis" warranting service connection for a psychiatric disorder
including post-traumatic stress disorder. The veteran and his
accredited representative were provided with copies of the Board's
decision.
The evidence then before the Board consisted of the veteran's service
medical and historical records; a July 1989 statement from the United
States Army and Joint Services Environmental Support Group; VA
examination and treatment records; private examination and treatment
records; photocopies of newspaper articles; the transcript of a
September 1989 hearing; and statements from the veteran and Reverend
John S. Crawford. The Board found that the evidence of record did
not establish that the veteran suffered from post-traumatic stress
disorder or any other psychiatric disability related to his period of
active military service.
B. New and Material Evidence
We observe that when a veteran requests that a claim be reopened
after an appellate decision and submits evidence in support thereof,
a determination as to whether such evidence is new and material must
be made and, if it is, whether the record provides a basis for
allowing the claim. An adverse determination as to either decision
is appealable. 38 U.S.C.A. § 7104 (West 1991).
Therefore, the issue presently before the Board is whether new and
material evidence has been submitted since the October 1990 Board
decision. Title 38 of the Code of Federal Regulations (1992) states,
in pertinent part, that:
"New and material evidence" means evidence not
previously submitted to agency decision makers
which bears directly and substantially upon the
specific matter under consideration, which is
neither cumulative nor redundant and which, by
itself or in connection with the evidence
previously assembled, is so significant that it
must be considered in order to fairly decide the
merits of the case. 38 C.F.R. § 3.156(a)
(1992).
The United States Court of Veterans' Appeals (hereinafter "the
Court") has elaborated on what constitutes "new and material
evidence." New evidence is not that which is merely cumulative of
other evidence already present in the record. Colvin v. Derwinski, 1
Vet.App. 171, 174 (1991) citing Williams v. Sullivan, 905 F.2d 214,
216 (8th Cir. 1990). When evidence is material, it means that there
is a reasonable possibility that consideration of the new evidence,
when viewed in the context of all of the evidence, would change the
outcome of the appeal. Smith v. Derwinski, 1 Vet.App. 178, 179
(1991).
The evidence received since the October 1990 Board decision consists
of photocopies of VA and private clinical documentation previously of
record; additional service medical records; VA examination and
treatment records; private examination and treatment records; a June
1992 statement from the Board's psychiatric adviser; a March 1993
opinion from an independent medical expert; transcripts of the
February and December 1991 hearings on appeal; photocopies of
newspaper articles and letters from the veteran to his mother dated
in 1965 and 1966; an extract from a medical text; numerous statements
from the veteran; and statements from the veteran's mother and Wanda
K. Dearien. After thoroughly weighing this additional documentation,
the Board notes that it contains medical opinions which advance that
the veteran is suffering from post-traumatic stress disorder. We
find that such evidence is new and material as to the issue of
service connection for post-traumatic stress disorder and is
sufficient to reopen the veteran's claim. Therefore, we will review
his claim on a de novo basis.
C. De Novo Review
The veteran advances on appeal that he presently suffers from post-
traumatic stress disorder which arose as the result of his combat
experiences in Vietnam. Service connection may be granted for a
disability resulting from disease or injury incurred in or aggravated
by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991).
The veteran's service medical records make no reference to either a
psychiatric disorder or a pattern of symptomatology indicative of the
onset or presence of such a disability. At the April 1967 physical
examination for service separation, the Army examiner observed no
psychiatric abnormalities. The veteran's service file conveys that
he served in Vietnam from July 1965 to August 1966 as a light vehicle
driver and was awarded a number of commendations including a Bronze
Star and an Air Medal.
At a September 1986 VA psychiatric evaluation, VA personnel advanced
impressions of an adjustment disorder with anxiety and adult
antisocial behavior. At the November 1986 VA fee-basis psychiatric
examination for compensation purposes, the veteran complained of
"stress syndrome." On mental status examination, the veteran
admitted to being occasionally nervous and denied suffering from
emotional problems, nightmares, disturbing dreams, hallucinations,
delusions, and paranoid or suicidal ideations. He was observed to be
vague, evasive, insincere, flippant and not depressed. The
psychiatrist diagnosed the veteran as suffering from an antisocial
personality disorder.
An August 1989 statement from Jesse Coulter, a readjustment
counseling specialist, conveys that the veteran suffers from
post-traumatic stress disorder related to his tour of duty in
Vietnam. An October 1989 statement from Paul L. Crawford, Ph.D.,
states that although he had not formally evaluated the veteran, it
was his informal diagnosis that the veteran suffered from a schizoid
personality and probable post-traumatic stress disorder.
The report of the November 1989 VA fee-based psychiatric examination
for compensation purposes notes that the veteran was diagnosed with
an antisocial personality disorder and alcohol dependency. The
psychiatric examiner observed that his evaluation of the veteran did
not substantiate a diagnosis of post-traumatic stress disorder.
A May 1991 VA hospital summary and associated treatment records
report that the veteran initially sought treatment for a history of
chronic substance abuse. The veteran related on admission to the
hospital that: he was experiencing worsening psychiatric complaints;
he had participated in combat during 1965 and 1966 in Vietnam; he had
witnessed the deaths of two close friends during such combat; and he
had been incarcerated for cultivating marijuana. Contemporaneous
psychological testing advanced impressions of alcohol abuse, cannabis
abuse and features of a mixed personality disorder. Psychiatric
examination revealed that the veteran was suffering from
polysubstance abuse, chronic post-traumatic stress disorder and a
mixed personality disorder.
An undated newspaper article states that the veteran participated in
the capture of a Viet Cong hospital and killed five enemy soldiers.
In an undated statement received in February 1987, the veteran states
that he witnessed deaths of several fellow servicemen. A July 1989
report from the United States Army and Joint Services Environmental
Support Group confirms that the veteran's unit was involved in combat
and that the individuals identified by the veteran had been killed in
action.
At the September 1989 hearing, the veteran testified that while in
Vietnam: he observed the deaths of several specific service comrades
during combat; he killed Vietnamese combatants and civilians; he was
awarded several combat-related commendations including two Purple
Hearts; and he was initially wounded when he stepped on a "punji
stick" and again when he was struck by a piece of tree bark. At the
February 1991 hearing on appeal, the veteran testified that he
suffered from a number of service-related disorders including
"nerves." At the December 1991 hearing before the Board, the veteran
stated that: he served in Vietnam as an infantry "point man" rather
than as a light vehicle driver; he witnessed the combat deaths of
several fellow servicemen; he was wounded by a "punji stick and
exposed to Agent Orange;" and he is currently being treated for post-
traumatic stress disorder at a VA medical facility.
A June 1992 statement from the Board's psychiatric advisor advances
that the veteran possibly suffers from post-traumatic stress
disorder. Pursuant to the Board's request for an opinion in this
case from an independent medical expert, a March 1993 statement from
a specialist at a university medical center was received into the
record. The doctor concluded that a review of the veteran's claims
file supports the diagnosis of post-traumatic stress disorder
secondary to his Vietnam combat experiences. We find it significant
that the medical expert found diagnoses of post-traumatic stress
disorder which were rendered following a period in which the veteran
was seen during extended treatment sessions to be more valid than
diagnoses which did not include post-traumatic stress disorder which
were offered following a single evaluation.
The Board has carefully weighed the probative evidence and the
veteran's argument on appeal. Given that the veteran was awarded an
air medal during his tour of duty in Vietnam and as he has been
diagnosed as suffering from chronic post-traumatic stress disorder
secondary to his combat experiences, we conclude that service
connection is warranted for the claimed disorder. We would point out
that we find many inconsistencies in the record, and are not
persuaded that the veteran is an especially credible or reliable
historian. However, we conclude that the record is such that the
statutory benefit of the doubt rule must be invoked, and consequently
results in a decision favorable to the veteran. Accordingly, service
connection for post-traumatic stress disorder is granted.
II. "Punji Stick" Wound Residuals
A. Prior Board Decision
In February 1987, the RO denied service connection for residuals of a
"punji stick" wound. The veteran was informed in writing of both the
denial and his appellate rights in February 1987. A substantive
appeal was not perfected within one year of notification of the
adverse decision. In June 1989, the veteran sought to reopen his
claim for service connection. In October 1990, the Board denied
service connection for residuals of a "punji stick" wound. The
veteran and his accredited representative were provided with copies
of the Board's decision.
The evidence then before the Board consisted of the veteran's service
medical and historical records; a July 1989 statement from the United
States Army and Joint Services Environmental Support Group; VA
examination and treatment records; private examination and treatment
records; photocopies of newspaper articles; the transcript of a
September 1989 hearing; and statements from the veteran and Reverend
John S. Crawford. The Board found that the evidence incorporated
into the record since the RO's February 1987 rating decision did not
establish that the veteran exhibited any residuals of a "punji stick"
wound related to his period of active military service.
B. New and Material Evidence
As we noted in our discussion of the issue of service connection for
post-traumatic stress disorder, when a veteran requests that a claim
be reopened after an appellate decision and submits evidence in
support thereof, a determination as to whether such evidence is new
and material must be made and, if it is, whether the record provides
a basis for allowing the claim. An adverse determination as to
either decision is appealable. 38 U.S.C.A. § 7104 (West 1991).
Therefore, the issue presently before the Board is whether new and
material evidence has been submitted since the October 1990 Board
decision. The evidence received since the October 1990 Board
decision consists of photocopies of VA and private clinical
documentation previously of record; additional service medical
records; VA examination and treatment records; private examination
and treatment records; a June 1992 statement from the Board's
psychiatric adviser; a March 1993 opinion from an independent medical
expert; transcripts of the February and December 1991 hearings on
appeal; photocopies of newspaper articles and letters from the
veteran to his mother dated in 1965 and 1966; an extract from a
medical text; numerous statements from the veteran; and statements
from the veteran's mother and Wanda K. Dearien. After thoroughly
weighing this additional documentation, the Board notes that it
contains clinical findings which show that the veteran exhibited
possible "punji stick" scar residuals of the right foot. We find
that such evidence is new and material as to the issue of service
connection for "punji stick" residuals and is sufficient to reopen
the veteran's claim. Therefore, we will review his claim on a de
novo basis.
C. De Novo Review
The veteran advances on appeal that he sustained a "punji stick"
wound to the right foot during combat in Vietnam. Service connection
may be granted for a disability resulting from disease or injury
incurred in or aggravated by active military service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991).
The veteran's service medical records make no reference to a "punji
stick" wound of the right foot or any other combat-related wound. At
the April 1967 physical examination for service separation, the
veteran neither reported having incurred a "punji stick" wound nor
exhibited any physical abnormalities consistent with such an injury.
The veteran's service file does not indicate that the veteran was
wounded or that he was awarded the Purple Heart.
In his September 1986 application for compensation or pension, the
veteran reported that he sustained a "punji stake" wound in April
1966 while fighting in Vietnam. At the October 1986 examination for
compensation purposes, the veteran neither complained of nor
exhibited any physical abnormalities consistent with a "punji stick"
wound or any other type of wound. At the November 1986 VA fee-based
psychiatric examination, the veteran related that he had stepped on a
"punji stake" while in Vietnam and had been hospitalized for several
weeks due to an associated infection.
In an undated statement received in February 1987, the veteran
related that he had received a Purple Heart medal for a "punjie
stake" wound. At the September 1989 hearing, the veteran testified
that he stepped on a "punji stick" which penetrated the right foot
and necessitated medical treatment at the battalion aid station and
the "85th Medivac."
At the November 1989 VA fee-based psychiatric examination for
compensation purposes, the veteran reported that he sustained a
"punji stick" injury of his right foot without sequelae. A March
1990 VA treatment record conveys that the veteran reported having
sustained a "punji spear" wound to the right foot while in Vietnam
which was not presently symptomatic. Physical examination found a
faint, well-healed, one and one-half centimeter-long puncture wound
scar in the plantar area of the right foot. Contemporaneous X-ray
study of the right foot revealed slight hallux valgus deformity.
At the December 1991 hearing before the Board, the veteran testified
that: he stepped on a "punji stick" which went through his boot and
into his foot; he was hospitalization in the "85th Medivac" for a
secondary infection; and he presently suffers from no remarkable
right foot abnormalities.
The Board has carefully reviewed the veteran's claims file. We
observe that the clinical documentation of record is devoid of any
objective evidence consistent with the incurrence of a "punji stick"
wound except for the March 1990 VA entry which notes a right foot
puncture wound scar. Given this fact, the Board has considered the
potential application of 38 U.S.C.A. § 1154(b) (West 1991). That
statute states, in pertinent part, that:
In the case of any veteran who engaged in combat
with the enemy in active service with a military,
naval, or air organization of the United States
during a period of war, campaign or expedition,
the Secretary shall accept as sufficient proof of
service-connection of any disease or injury
alleged to have been incurred in or aggravated by
such service satisfactory lay or other evidence of
service incurrence or aggravation of such injury
or disease, if consistent with the circumstances,
conditions, or hardships of such service,
notwithstanding the fact that there is no official
record of such incurrence or aggravation in such
service, and, to that end, shall resolve every
reasonable doubt in favor of the veteran.
Service-connection of such injury or disease may
be rebutted by clear and convincing evidence to
the contrary. The reasons for granting or denying
service-connection in each case shall be recorded
in full.
In applying the provisions of 38 U.S.C.A. § 1154(b) to the veteran's
claim, we conclude that service connection is warranted for the
claimed disorder as the veteran's claim is consistent with both the
apparent nature of his Vietnam Conflict Era service and his present
right foot abnormalities. Accordingly, service connection is granted
for "punji stick" wound scar residuals of the right foot.
ORDER
Service connection for post-traumatic stress disorder is granted.
Service connection for "punji stick" wound scar residuals of the
right foot is granted.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JEFF MARTIN IRVIN H. PEISER, M.D.
E. W. SEERY
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board granting less than the complete benefit, or
benefits, sought on appeal is appealable to the Court within 120 days
from the date of mailing of notice of the decision, provided that a
notice of disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the face of
this decision constitutes the date of mailing and the copy of this
decision which you have received is your notice of the action taken
on your appeal by the Board.